Stop and Frisk

The controversy over the practice of "stop and frisk" has entered the presidential campaign. Let's begin with a trivia question. Who wrote the Supreme Court decision upholding "stop and frisk" upon reasonable suspicion?

(a) William Rehnquist(b) Antonin Scalia(c) Roger Taney(d) Earl Warren

The answer is (d).

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. [Citations.] And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

As the quote indicates, the constitutionality of stop-and-frisk depends on the circumstances.

In response to a question about stopping violence, it is reported that Donald Trump said, "I would do stop and frisk. I think you have to. We did it in New York.
It worked incredibly well. And you have to be proactive, and you know,
you really help people sort of change their mind automatically." Judging from the media reaction, one might think that he had endorsed summary decapitation.

In a follow-up appearance on Fox and Friends, it is clear from the dialogue between Mr. Trump and Steve Doocy about 8 minutes into the clip that he is endorsing stop-and-frisk based on reasonable suspicion that crime is afoot and reason to suspect that the person may be armed, which is what Chief Justice Warren's opinion upheld in the 8-1 decision in Terry.

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20 Comments

Trump's comments on Fox & Friends do not, IMO, make it "clear" that he is endorsing stop-and-frisk based on reasonable suspicion. Indeed, I believe his words belie any such conclusion.

Someone, perhaps at one of the debates, should ask Trump to clarify his understanding of the concept.

Does he believe that anyone can be stopped and frisked based upon "profiling" (a tactic that he has endorsed but has failed to define) without regard to reasonable suspicion? Does he believe that anyone can be stopped and frisked regardless of their "profile" and regardless of whether or not reasonable suspicion exists?

No doubt, Rudy knows the answers to these questions. But Rudy is not seeking to become the POTUS. Rudy's brain can't climb into Trump's (empty) head.

One thing is for sure: Trump has no idea who Earl Warren is and has never read a Supreme Court opinion. Unless, of course, Earl Warren wrote for the National Enquirer or that rag published an opinion from the Court.

The problem is whether Hillary would go along with stop and frisk at all, or whether the extent of her suspicion of the police and her political IOUs to BLM have now gone to the point that she opposes stop-and-frisk under circumstances were a normal, reasonable person without an agenda would approve.

I very much fear that S&F has become an ideological tripwire, where its symbolic freight with her backers makes it impossible for her to support them on the merits even where a balanced, reasonably liberal person would.

Trump is loathsome for a lot of reasons--this is not one of them. Trump doesn't get all the nuances of the law governing investigatory stops--so what? A lot of appellate judges don't either.

Trump is saying that S & F is a good way for cops to get out and about and fight crime and that we should have a national policy about it--yeah, not so hot in our federalist system, but this is a very minor misdemeanor.

By the by, the problem with Trump is not that he is stupid--he is not--he's a dilettante with a malfunctioning moral compass. He's a fair whit brighter than the guy we have in the Oval Office now. My guess is that Donald Trump doesn't have to have the difference between liability insurance and casualty insurance explained to him unlike the President, and my guess that no one had to tell him that there's no such thing as the Austrian language.

Sometimes a lot. USDOJ sometimes brings civil rights suits against police departments and squeezes out their agreement to consent decrees that constrain their operation far more than actual federal law.

Will the next USAG be someone like Eric Holder or someone recommended by Rudy Giuliani? It matters. A lot.

If I am not mistaken, at least some (many? most?) in law enforcement were arguing before Terry that "stop and frisk" was not a search and so not subject to any constitutional limits under the 4th Amendment. In many ways, Warren's decision to subject these encounters to constitutional restrictions was a pretty "liberal" decision at the time AND it certainly also involved the classic Warren Court tendency to "make up the law" to serve social ends regardless of what the text of the Constitution says or may have originally meant. (E.g., reasonable suspicion is not in the text, and I am not aware of it being a common concept at the Founding).

I provide this context not only to make sure folks fully appreciate that Warren's work in Terry was hardly a pro-police decision AND also to assert that principled textualists/originalists ought not be too keen to praise Warren's work here.

That all said, and with the debates on the horizon, would others agree that it would be a great ("gotcha"?) question for both candidates to now be ask if they think Terry was good decision and/or whether they think federal statutory law ought to place more limits on the use of S&F than has Terry and its progeny?

And one more comment to stir the pot: I agree 100% that the next USAG matters a whole lot. But I also think, if HRC and DJT are as smart as I hope they are, both would be wise to offer/allow current USAG Lynch to stay in her position AT LEAST until we get a Ninth Justice confirmed.

I know lots of folks who like Trump on C&C issues dislike the current AG. But, IMHO, getting a full SCOTUS in place after the election should be a first national priority, and trying to confirm a new AG around the same time will only add to the (invetiable?) political/practical messiness after this election. I am not sure if USAG Lynch could/would readily stay on even if asked, especially if DJT were to win, but I would like to believe that putting "America first" includes making sure we do not have a problematic lack of leadership at DOJ during a transition period when crime and punishment is rightly on everyone's mind.

"[P]utting 'America first'" means putting Trump first, at least to him and his family. The primary reason Trump is "loathsome" (as federalist correctly asserts) is that every decision (and I mean EVERY decision) that he would make as the POTUS would be motivated with one thing in mind: Does it benefit, in some way, shape or form, DJT, his family or the Trump Organization?

To think that this 70-year old vulgarian (as Kent has aptly characterized him in prior posts) is going to suddenly and miraculously change on Friday, January 20, 2017 from a single-minded, cut-throat, unethical (if not criminal), malevolent, "businessman" whose sole motive is making a profit (for him, his family or his organization) by any means possible, into an man whose only desire is to "Make America Great Again" (whatever that means) is pure and simple fantasy. (And apparently a fantasy that tens of millions of Americans foolishly believe.)

God Bless America. We will need all the help we can get if this loathsome, vulgarian, is in the Oval Office eating a Taco Bowel and leering at pictures of his former wife/wives in the National Enquirer next Cinco de Mayo.

I don't see any reason to delay an AG selection for a SCOTUS confirmation. A solid choice for AG can go through confirmation without a great deal of drama, especially if the President's party controls the Senate.

Far be it from me to disagree with "God Bless America." But is there any possible outcome to this election that would reduce our need for "firm Reliance on the Protection of divine Providence"? I don't see it.

Let's assume for purposes of argument that Trump wins the election (which I think unlikely but far from impossible).

Given Trump's many downsides, the only reason this could happen is if the country wants a massive shift of direction. I have confidence that Ms. Lynch would do what every other AG has done, to wit, offer her resignation.

There is no reason that Trump would (or should) continue with leadership that his election would have repudiated. DOJ's current penchant for imposing federal control of local police, for example, is something Trump opposes, and he should clean house to implement new priorities. Cleaning house starts with the person primarily running the house.

P.S. I missed the argument that Michael Mukasey should have stayed on until Eric Holder was confirmed. Where was that?

It seems that paul has the "holier than thou" attitude of a lot of "never Trumpers."

I get it, to be blunt, Trump sucks. But you know what--so does HRC, Harry Reid, Nancy Pelosi, Chuck Schemer, Dick Durbin, Loretta Lynch, Eric Holder and a whole host of other Dems. Let's take Holder--just for a second--Fast and Furious. Holder's DoJ stuck it to whistleblowers---he had to know about it, and he did nothing to address it. Compare that with the treatment a lawyer, Daryl Foster, in the Civil Rights Division got when he had the costs of personal trips reimbursed by the government. Trump may be awful, but nothing he has done remotely compares with that. Nothing. I don't recall your outrage then.

From what I can gather, the somewhat snobbish idea that, quell horreur, we can't have a vulgarian in the WH, overrides all other considerations. It reminds me of the execrable John McCain standing on some silly "principle" to stick it to his own party.

By the by, HRC just came out with the colossally stupid idea that foreigners have a right to come to America. That is an order of magnitude dumber than what Trump said about S & F. Don't see quite the outrage, paul.

Bill, we were not down a Justice when Obama took over from GWB, nor were in the midst of a period in which police/citizen encounters were coming under quite so much scrutiny. That said, if Trump were to quickly nominate someone for AG who would have bipartisan support and could be quickly confirmed --- e.g., Jim Comey comes to mind --- then I believe it would be wise to do transition business as usual.

That said, I think there is a real risk of the federal criminal justice system reaching a new level of potential dysfunction if Trump were to win and then were to pick a controversial figure like, say, Chris Christie to be his AG. That said, you may well be right, Bill, that a Trump win would signal that US voters are eager for that kind of dysfunction as a change of course. My main point was my belief/hope that a first priority for the new Admin can/should be getting SCOTUS back to full operating personnel.

Indeed, a Christie confirmation hearing would quickly turn into a "what did he know and when did he know it" examination of Bridgegate.

"That said, you may well be right, Bill, that a Trump win would signal that US voters are eager for that kind of dysfunction as a change of course."

Um, how is it possible for a person to be "right" in something he did not say?

"My main point was my belief/hope that a first priority for the new Admin can/should be getting SCOTUS back to full operating personnel."

Getting it right is more important than getting it quick. The justice system will not suffer all that much if we have another 8-justice term without blockbuster decisions. Both the cause of justice and the people's right of self-government will suffer greatly if the Supreme Court does not make a course correction in the correct direction.

Do you really think that the only two choices are a Loretta Lynch-run DOJ and "dysfunction"?

And even if it were the case that the country needed an "interim" AG until the Supreme Court vacancy is filled, how about a man of unquestioned integrity and (to say the least) the right kind of experience?

This is another case where the Left has won the language battle by getting everyone to accept the phrase, “Stop and Frisk.” It falsely but effectively conveys the idea that it invloves randomly stopping and frisking individuals with no justification at all.

Totally off topic--but what is very interesting--the same people who are outraged about Bridgegate (and if Christie knew about it, he belongs in prison) are the same people who are chill with some of the ham-handed actions of federal employees during the shutdown, e.g., keeping tourists locked up in a hotel.